In 2019, the Supreme Court ruled that federal courts do not have the power to throw out a State’s congressional district map even if it was designed to empower one political party over another. As a result, the court has effectively ruled that partisan gerrymandering is legal under the United States Constitution.
As part of their justification, the majority cited the fact that “Numerous States are actively addressing the issue through state constitutional amendments and legislation” In fact, there have been some recent examples where states have taken steps to combat gerrymandering. In 2018 voters in Colorado, Michigan, Missouri, Ohio, and Utah all approved ballot measures which would limit the effect of partisanship in next round of redistricting.
However, there is no reason to think this trend will continue. Partisanship today is at an all time high. Thirty-six states have what is called a “trifecta” where one political party holds the governorship, a majority in the state senate, and a majority in the state house. If one party decided to take advantage of their power to bolster their chances in federal congressional elections, the other party might respond by doing the same leading to an all out gerrymandering war.
Maryland’s congressional map is considered to be one of the most partisan gerrymanders in the country. But Maryland democrats who control the state are wary to give up their partisan gerrymander until republican states do the same. They point out that to do so would amount to unilateral disarmament. For this reason, Maryland democrats have long argued for a national solution to gerrymandering — one which they had hoped the court might supply.
With that option gone, it’s worth considering what a gerrymandering war might look like and who might come out on top. Right now, Republicans fully control 22 states which, together, are represented by 180 seats in the House of Representatives. Democrats hold 14 states which together have 151 congressional districts. The remaining 104 congressional districts are in 14 states with a divided government.
If a gerrymandering war started, the assumption would be that every state controlled by a single political party would gerrymander that state’s congressional map to the greatest extent possible while divided states would have their maps drawn in a generally nonpartisan manner by courts. How would this play out? Using congressional maps generated by FiveThirtyEight’s fantastic Atlas of Gerrymandering, we are able to compare the average result of the current nation-wide congressional maps with the average results of a map where every state trifecta gerrymanders their map to benefit the party in power.
You might assume that Republicans would win the gerrymandering wars. After all, they control more states with more congressional districts. Republicans also have a structural advantage in this fight because Democrats concentrate in deeply blue areas while Republicans are more evenly distributed which makes democrats easier to draw into a small number of districts. However, Democrats actually end up gaining seats on average over the current maps.
It turns out that Republican controlled states are already pretty stacked against Democrats and efforts to further gerrymander those states don’t add as much to their advantage. As a result, Democrats actually manage to gain seats on average by gerrymandering otherwise fair maps in places like California and New York. Under the current congressional maps, Democrats would be expected to win 202.92 seats in the United State House of Representatives. After the gerrymandering wars, that would rise to 205.38. That’s right, a whopping two seats. The balance of power in Washington wouldn’t really change. However, the power of the average voter would drop dramatically.
When they discuss partisan gerrymandering, most people focus on how it subverts the will of the people by stacking the deck against a particular political party and its voters. What is often overlooked is how gerrymandering reduces electoral competition overall. This happens as a byproduct of the way gerrymandering is done. There are two basic ways that a map can be drawn to advantage/disadvantage a political party. You can try to “pack” as many of your opponent’s voters into as few districts as possible or you can try to “crack” your opponents voters by placing them into many districts where their voices will be drowned out by your voters. As a result, this process inevitably creates districts which are overwhelmingly partisan in favor of one party or another.
Under the current congressional map, 71 seats are rated as competitive which means each party has at least a 1/6 chance of winning. Under our theoretical ultra-gerrymandered maps, that number would drop to only 32 districts. That means control of the House of Representatives would come down to the results in those 32 districts. If you live in one of the other 403 districts, the result of your election would essentially be preordained. These hyper-partisan districts may also be contributing to our worsening political divisions.
In a district where the general election is a foregone conclusion, the real competition migrates to the primaries. Primaries automatically exclude everybody who is not a member of the dominant political party in that district and focus on enthusiasm over broad coalitions. Both of these things lead to more ideologically extreme candidates being elected. The result is a divided and poorly represented electorate — paralyzed by gridlock and powerless to stop it because of a political class which is insulated from public opinion and hard choices.
We shouldn’t focus on what system benefits which party; gerrymandering needs to be ended for the good of the country. Competition holds our representatives accountable and draws them towards moderation. Competition also gives voters more power to make a change when they want to, gives novel candidates with novel ideas a better chance, and can put real power behind an electoral mandate.
We need a national solution to gerrymandering. Not so that things are more fair for Democrats in Texas or for Republicans in Maryland, but to give power back to everyone whose voices have been drowned out in a sea of partisanship. In a democracy, voters should choose their representatives. Not the other way around.